Tough to lock-down policies on medical marijuana at work: Irwin

By Paul Russell, AdvocateDaily.com Contributor

Companies should have policies in place that clearly spell out the expectations and limitations when it comes to an employee's use of medicinal marijuana in the workplace, Toronto employment lawyer Mackenzie Irwin tells AdvocateDaily.com.

“Everyone needs to know what is expected of them when it comes to marijuana use in the workplace,” says Irwin, associate with MacDonald & Associates. “If someone has been prescribed medical marijuana, employees and employers have to work together to ensure the employee can safely and competently perform the essential duties of their job.”

At safety-sensitive job sites, that compromise may not be an option. Irwin cites a recent judicial review in Newfoundland and Labrador of a labour arbitrator’s decision involving a man who was turned down after applying for a position at a construction site.

According to the judgment, the man worked for more than 30 years as a construction labourer before being laid off in 2016. In 2017 he applied for two other positions which required him to undergo drug and alcohol testing.

When he attended a job screening, the ruling reads, he disclosed that his doctor prescribes him medicinal cannabis to help him deal with chronic pain caused by Crohn’s disease and osteoarthritis. He did not get hired, so the union submitted a grievance.

“The judicial review of that decision came down to a battle of the experts,” Irwin says, noting that both sides presented medical evidence about the risk and duration of impairment from marijuana consumption.

Testifying for the union, one doctor said that the significant impairing effect from vaporizing the drug should dissipate within two hours, the judgment notes, while a doctor for the company said impairment could last up to 24 hours.

“Since this was a safety-sensitive workplace, the court found that even the potential to have impairing effects — that could last up to 24 hours, in addition to the employer’s inability to measure and manage the risk of harm — was enough to constitute undue hardship for the employer under the province’s Human Rights Code,” says Irwin, who was not involved in this case and comments generally.

When it comes to medical marijuana, she says employers are bound by two pieces of legislation, the province’s Occupational Health and Safety Act and the Human Rights Code.

"On the one hand, employers have a duty to protect their workers’ health and safety under the Occupational Health and Safety Act. On the other hand, employers have a duty to accommodate employees under the Ontario Human Rights Code. These two obligations are often at odds with each other, creating a tricky balancing act for employers and a common source of litigation in employment law,” she says.

Irwin cites the example of when an employee is given a prescription for medicinal marijuana to deal with a health issue. Employers have a duty to accommodate that, she says, “up to the point of undue hardship, as employees cannot be permitted to work if they are unable to do so safely.”

The Newfound and Labrador decision does not set a blanket precedent for all workplaces since there is other case law in this area with different outcomes, Irwin says.

“Employers have to take this decision with a grain of salt,” she says. “They can’t rely on this decision to surmise that they can never accommodate an employee in a safety-sensitive position who takes cannabis for medical reasons. There are other factors that play into the duty to accommodate, and as science and technology develop, this decision may become less applicable.”

Irwin says the big problem is that we don’t have the technology or the science yet to reliably determine what level of marijuana use causes impairment and how long that impairment will last.

“Marijuana affects everyone differently, so it is tough to lock-down a policy,” she says.

All employers should develop policies that aim to accommodate employees who are prescribed medicinal marijuana, she says, and managers need to be trained on how to implement them.

When employees tell their firms about these prescriptions, Irwin says they don’t have to specify what medical condition led to that treatment.

“Employers are only entitled to information about how the employee’s medical drug use will impact their ability to complete the central duties of their jobs,” she says. “This is not an open invitation to access the employee's entire medical record."

When it comes to the use of recreational pot, she says employers have the right to establish zero-tolerance policies for the workplace.